What is mora or delay?

The word delay in Article 1169 of the Civil Code is synonymous to default or mora, which means delay in the fulfillment of obligations. Hence, delay or default is the non-fulfillment of the obligation with respect to time.[1] The general rule is "no demand, no delay." In unilateral obligations, the mere expiration of the period fixed by the parties is not enough in order that the debtor may incur in delay. Those obliged to deliver or to do something incur in delay from the time the obligee judicially or extrajudicially demands from them the fulfillment of their obligation.[2] On the other hand, in reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins.[3] There is no delay if neither of the parties performs.The demand for performance marks the time when the obligor incurs mora or delay and is deemed to have violated his obligation. Without such demand, the effect of default will not arise unless any of the exceptions mentioned below is clearly proved.[4]

1. When demand would be useless, as when the obligor has rendered it beyond his power to perform; such as: a. When the impossibility is caused by some act or fault of the debtor (e.g. debtor absconded or has destroyed the thing to be delivered); b. When the impossibility is caused by a fortuitous event, but the debtor has bound himself to be liable in case of such event.

2. When from the nature and the circumstances of the obligation it appears that the designation of the time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract (time is of the essence); 

3. When the law so provides; or 

4. When the obligation expressly so declares

Moreover, there are three (3) kinds of delay: a) mora solvendi, or delay on the part of the debtor to fulfill his obligation (to give or to do) by reason of a cause imputable; b) mora accipiendi, or the delay on the part of the creditor without justifiable reason to accept the performance of the obligation; and c) compensatio morae or the delay of the obligors in reciprocal obligations.[5]

[1] Rabuya, E. (2019). Obligations and Contracts.

[2] Art. 1169 par. 1, Civil Code.

[3] Art. 1169 par. 3, Civil Code.

[4] Art. 1169, par. 2, Civil Code.

[5] De Leon. (2014). Obligations and Contracts.

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